91 A. 196 | Conn. | 1914
Lead Opinion
This will, which was confirmed and reestablished by its codicil in 1897, and did not speak until the decease of the testator in 1899, does not come under the operation of the statute against perpetuities, repealed in 1895. Public Acts of 1895, Chap. 249, p. 590.
The gift of one half of the rest, residue and remainder to the children of Reuben, contained in the eighth paragraph, was a gift in trust to be held and disposed of, principal and income, in precisely the same way as was provided in paragraph seven for the management and disposition of the $4,000 fund, principal and income, which was the subject-matter of the provisions of paragraph seven. Ann Jane Stuart, having died leaving issue surviving, took only a life use. The remainder over of that portion of the trust fund of which she was entitled to receive the income vested in her issue, and upon her death became an absolute estate in them.
By the words "issue of his or her body," as used in paragraph seven, was meant issue in any degree. That is the primary and usual meaning of those words, and there is nothing to indicate their use here in any more limited sense. Bartlett v. Sears,
The words "issue of his or her body" include illegitimate as well as legitimate issue. There is nothing in the will to indicate the use of these words in any other than their prima facie signification. Eaton v. Eaton, ante, p. 269,
That part of the trust fund held by the plaintiff, of which Ann Jane Stuart was entitled to the income during her life, is now payable to her daughter Gertrude Stuart Benson and her grandson Louis Eaton Sterry, one half thereof to each.
Advice is not given, and should not be given by the Superior Court, upon questions unrelated to contingencies which have arisen or to conditions that exist.
The Superior Court is advised to render its judgment in conformity with the above conclusions.
No costs in this court will be taxed in favor of any of the parties.
In this opinion THAYER, RORABACK and BEACH, Js., concurred.
Dissenting Opinion
The testator gave to trustees a fund, the income from which was to be paid equally to the children of his brother during their lives. He then provided: "But if any of said children die leaving issue of his or her body, then the portion of said trust fund of which said child or children are entitled to the income shall go and belong absolutely to such issue."
One of the children, Mrs. Stuart, had an illegitimate daughter born March 26th, 1877, who died September 14th, 1896. This daughter had an illegitimate son, born December 5th, 1893, and now living.
The testator's will was published November 18th, 1891, and the codicil thereto March 1st, 1897, which recited: "I hereby confirm and establish my said will in all other respects."
At the death of Mrs. Stuart, and at the making of the codicil, Gertrude was the only living child of Mrs. Stuart.
The "issue of . . . her body," in this clause of the will, meant the legitimate issue of her body. If it could *292 be held to include illegitimate issue of her body, there was none such at the republication of the will, and the testator could not then have so intended.
We need not renew or repeat our discussion had in the case of the will of Reuben Eaton.
The uncle of Mrs. Stuart (Russell Eaton) did not, in my judgment, by the devise to the issue of her body, intend to include therein the illegitimate son of the illegitimate daughter of Mrs. Stuart, but did intend to include only the legitimate children of Mrs. Stuart.